The overruling of the Roe v Wade decision by the Supreme Court in the Dobbs decision marks a significant moment in the abortion debate, while highlighting the deep fissures in America’s body politic.
The Supreme Court ruled that ‘The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment’.
Leaving aside for the moment the abortion issue, it should be acknowledged that the Roe v Wade decision of 1973 was always problematic from a legal perspective, in that for many, the judges indulged in a constitutional overreach so as to establish’ a constitutional right’ to abortion. The late Justice, Ruth Bader Ginsburg, an articulate advocate of abortion, was critical of the Roe v Wade decision, even saying in 2012 that it was a ‘most undemocratic decision’ in that nine unelected judges effectively made policy. For many conservatives the Dobbs decision is primarily about the nature of the American Constitution and the role of judges in shaping public policy.
Despite the fact that the Supreme Court ruling had been foreshadowed months ago, the shock has been real. It is not the first-time previous rulings had been overturned; both the Dred Scott and Plessy ruling which, to their shame had upheld slavery and segregation, were overturned more than fifty years later. In 1973 the decision of nine rather elderly white men changed overnight the abortion landscape, by a ruling that from the beginning has been problematic constitutionally.
The Dobbs decision heralds a new stage in the abortion debate. The editors of America, a Jesuit publication, put the case ‘that as a constitutional matter, the regulation of abortion is primarily a question for state legislatures; as a moral matter, unborn human life has sacred dignity and is deserving of legal protection; and finally, as a political matter, the complicated and divisive questions surrounding abortion cannot be effectively addressed when the only real venue for the issue is in the Supreme Court.’ The Supreme Court decision accords with this perspective.
'The reversal of the Roe v Wade decision does not ban abortion, but rather gives over abortion legislation to the fifty American States.'
The reversal of the Roe v Wade decision does not ban abortion, but rather gives over abortion legislation to the fifty American States: ‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives’. Some States will largely ban abortion, while the majority will allow abortion with some restrictions, while others will have among the most liberal laws in the world allowing abortion up to birth. In many of the States where there may be restrictions, they will be in line with the situation in much of the world where abortion is legal but restricted.
American public opinion itself, has been deeply divided on abortion for decades. While a plurality has supported the Roe decision, a plurality has also favoured a range of restrictions which have been problematic under Roe v Wade. Originally, the Roe v Wade decision had revolved around the idea of viability of the foetus, but increasingly Court decisions across America were ignoring this condition, while medical advances were pushing viability back to around twenty weeks.
This debate is perhaps like no other, in that there are many individuals of good will, decency and principle on both sides of the abortion debate. There is a huge number of women who are pro-choice and who are mothers, and who are people of principle. Similarly, that are a huge number of women who are pro-life, and not anti-women. Most of the leaders of right to life in America have been women. Dr Mildred Jefferson, one of the movement’s founders, was the first black woman to graduate from the Harvard Medical school. Nellie Gray was a remarkably committed activist.
Unhelpful stereotypes abound in the debate. There are pro-life feminists and people of no religion who are pro-life, and there are religious people who are pro-choice. Liberals need to acknowledge that pro-life liberals have been marginalized, while conservatives need to remind themselves not to allow the pro-life position to be captive to a different conservative agenda.
There has been a growing polarization around abortion in American politics. And this process had largely begun on the left in American politics. Pro-lifers have been virtually expelled from the Democratic Party, with Emily’s List aggressively seeking to purge the party of pro-life voices. It was the left that first applied an abortion litmus test for appointments to the Supreme Court, a test now applied by the right in regards to such appointments. Democrat politicians like Obama, Biden and Hilary Clinton who had spoken of abortion as a tragic choice that should be ‘legal, safe and rare’, no longer use such moderate language. At the same time the pro-life cause has risked becoming hostage to the right of American politics. It is perceived by many as a protagonist in the culture wars and as an enemy, for example, of the LGBTI community, where there is no inherent reason to do.
As the pro-life challenge has grown, pro-choice positions have become more radical – supporting third semester abortions, partial birth abortion, abortion to eliminate Down Syndrome children, abortion on the basis of gender selection. And while the defence of the autonomy of women and their right to choose have become more absolute, the science has moved decisively against any argument that the unborn are simply parts of their mothers’ bodies. Advances in science mean that those who were voiceless can now be seen in the womb.
'Criminalization of abortion in some States, in some or all circumstances, is problematic in that very few are comfortable with the idea of imposing penalties on women who in most cases are making difficult decisions of the most personal nature.'
In 2019 Steve Jacobs completed a PhD at the University of Chicago. He did so in the face of considerable internal opposition at the University. A key part of his research was a survey of nearly 5,577 academic biologists worldwide. He asked the simple question – ‘when does human life begin?’ 96 per cent affirmed that a human life begins at conception. There is a unique biological human from fertilisation. It is an uncomfortable fact of biology for the debate. It is not the potential human life expression that is found in the language of the original Roe v Wade decision in 1973, when the U.S. Supreme Court had suggested there was no consensus on ‘the difficult question of when life begins’ and that ‘the judiciary, at this point in the development of man’s knowledge, [was] not in a position to speculate as to the answer.’ A curious position then, but one that is untenable today.
Proponents of abortion who accept the biology fall back on the idea of personhood. At some point the individual achieves personhood, and only then does the child achieve legal recognition. It is not an unreasonable view though at what point is personhood achieved is the question, and to some extent it is an arbitrary point that imposes a non-scientific judgment in the process. And if the point is birth, as seems to the logic of the pro-abortion position in America, that a babe delivered at 20 weeks is fully protected by the law as a legal person, while a babe at nine months in the womb can be aborted. This seems uncomfortably close to the legal basis for slavery in America in the Dred Scott case of 1857.
At about twenty weeks, the foetus feels pain, is male or female, has a heartbeat, and there is brain activity. To simply ignore the humanity of the unborn child in the name of the rights of the mother, with no legal protections, strikes at the heart of a concept of the law protecting equally including those without a voice. Daniel Berrigan SJ, the prominent anti-war activist, was critical of a view that the lives of the unborn are considered among those that do not deserve rights and dignity. ‘Civilized people,’ said Father Berrigan, ‘have no business disposing of life at whatever stage.’
Uncomfortable challenges face both sides of the debate.
Criminalization of abortion in some States, in some or all circumstances, is problematic in that very few are comfortable with the idea of imposing penalties on women who in most cases are making difficult decisions of the most personal nature. And there are many medical people who are committed to the care as they see it of the mother. I would draw two caveats. There is growing pressure, and in places, even compulsion, from the time of training onwards, for nurses and doctors to participate in abortions even if they have conscientious objections. Secondly, I have no time for Planned Parenthood, a wealthy big business, founded by a proponent of eugenics, as ruthless in pushing for unrestricted abortion as the National Rifle Association in opposing gun controls, and credibly accused in some branches of trading in body parts.
The pro-choice position has become adept at not addressing the status of the preborn. Euphemisms have now changed to ‘forced motherhood’. Describing the foetus as potential life is simply not sustainable - science is science, and just because the foetus in the womb has no voice or name, he/she cannot be simply ignored. There are arguments to be made around the relative claims of an embryo and a fully developed foetus, but if no rights are to be granted at any stage to the human life in the womb, then there is no room for dialogue.
This latter point brings us to point of rights, in our western tradition there are no absolute rights – there can be competing rights, and sometimes a difficult balance had to be struck (which was acknowledged by early proponents of abortion). Our right to freedom of speech and expression can be limited by laws around hate speech and the like. In the American context, the constitutional right to bear arms must surely be subject to common sense restrictions around the safety of the community. Private property rights are not absolute and have to be measured against the common good, including environmental concerns. While at the moment there is no much appetite for conversation and dialogue, ultimately the issue of competing rights needs to be addressed by all.
I’m very much aware that I’m a celibate male writing about an issue that has unique relationship to women. The implications for legislation around abortion are incredibly complex and challenging. The overturning of Roe v Wade is not the end of the abortion debate. Steve Jacobs’ research suggested a middle ground ‘that both a majority of pro-choice Americans (53 per cent ) and a majority of pro-life Americans (54 per cent ) would support a comprehensive policy compromise that provides entitlements to pregnant women, improves the adoption process for parents, permits abortion in extreme circumstances, and restricts elective abortion after the first trimester.’
For Catholics the challenge is acute. Catholic churches have been targeted by vandals and arsonists. Catholics working in areas of social advocacy feel vulnerable. It is not in the church’s interest to become a pawn in the culture wars nor to allow the polarization in American society to become a feature within the community of Church.
Let me close with part of the statement of Cardinal Cupich of Chicago:
This moment should serve as a turning point in our dialogue about the place an unborn child holds in our nation, about our responsibility to listen to women and support them through pregnancies and after the birth of their children, and about the need to refocus our national priorities to support families, particularly those in need.
The Catholic Church brings to such a conversation the conviction that every human life is sacred, that every person is made in the image and likeness of God and therefore deserving of reverence and protection. That belief is the reason the Catholic Church is the country’s largest provider of social services, many aimed at eliminating the systemic poverty and health care insecurity that trap families in a cycle of hopelessness and limit authentic choice.
Fr Chris Middleton SJ is the rector of Xavier College in Melbourne.
Main image: People protest in response to the Dobbs v Jackson Women's Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022 in Washington, DC. The Court's decision in Dobbs v Jackson Women's Health overturns the landmark 50-year-old Roe v Wade case and erases a federal right to an abortion. (Brandon Bell/Getty Images)